United States. Congress. House. Committee on the J.

FBI and DEA : merger or enhanced cooperation? : joint hearing before the Subcommittee on Civil and Constitutional Rights and the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, September 29, 1993 online

. (page 1 of 14)
Online LibraryUnited States. Congress. House. Committee on the JFBI and DEA : merger or enhanced cooperation? : joint hearing before the Subcommittee on Civil and Constitutional Rights and the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, September 29, 1993 → online text (page 1 of 14)
Font size
QR-code for this ebook


FBI AND DEA: MERGER OR ENHANCED
COOPERATION?



JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON
CML AND CONSTITUTIONAL RIGHTS

AND THE

SUBCOMMITTEE ON
CRIME AND CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION i



82-964




Q




111
>


CO

B

C-J


LU


c:^


O


C^


LU




a:





o

CO

O tl



CD =3
ID "

5-g



O i^



CO c

cog



Printed for the use of the Committee on t^e Judiciary

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046335-1



T



H



•0 // I



/ '^-V



FBI AND DEA: MERGER OR ENHANCED
COOPERATION?



JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

AND THE

SUBCOMMITTEE ON
CRIME AND CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION



SEPTEMBER 29, 1993



Serial No. 60



Q
iU
>



82-964




Printed for the use of the Committee on t^e Judiciary

U.S. GOVERNMENT PRINTING OFFltE
WASHINGTON : ImT



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046335-1






I


CC




CD


CO




C.3


_J


C^




c4


CJ


%-*'-


_l


cz


CD




zn


CSl


n


Q_




-<


-*^




o




1—



CO

o

CD



COMMITTEE ON THE JUDICIARY

JACK BROOKS, Texas, Chairman

DON EDWARDS, California HAMILTON FISH, Jr., New York

JOHN CONYERS, Jr., Michigan CARLOS J. MOORHEAD, California

ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois

WILLIAM J. HUGHES, New Jersey F. JAMES SENSENBRENNER, Jr.,

MIKE SYNAR, Oklahoma Wisconsin

PATRICIA SCHROEDER, Colorado BILL McCOLLUM, Florida

DAN GLICKMAN, Kansas GEORGE W. GEKAS, Pennsylvania

BARNEY FRANK, Massachusetts HOWARD COBLE, North Carolina

CHARLES E. SCHUMER, New York LAMAR S. SMITH, Texas

HOWARD L. BERMAN, California STEVEN SCHIFF, New Mexico

RICK BOUCHER, Virginia JIM RAMSTAD, Minnesota

JOHN BRYANT, Texas ELTON GALLEGLY, CaUfornia

GEORGE E. SANGMEISTER, Illinois CHARLES T. CANADY, Florida

CRAIG A. WASHINGTON, Texas BOB INGLIS, South CaroUna

JACK REED, Rhode Island BOB GOODLATTE, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

DAVID MANN, Ohio

MELVIN L. WATT, North CaroUna

XAVIER BECERRA, California

Jonathan R. Yarowsky, General Counsel

Robert A. Lembo, Counsel /Administrator

Alan F. Coffey, Jr., Minority Chief Counsel



Subcommittee on Civil and Constitutional Rights

DON EDWARDS, California, Chairman

PATRICIA SCHROEDER, Colorado HENRY J. HYDE, IlUnois

BARNEY FRANK, Massachusetts HOWARD COBLE, North CaroUna

CRAIG A. WASHINGTON, Texas CHARLES T. CANADY, Florida
JERROLD NADLER, New York

Catherine LeRoy, Counsel
Ivy Davis-Fox, Assistant Counsel

James X. Dempsey, Assistant Counsel
Virginia Sloan, Assistant Counsel
Melody Barnes, Assistant Counsel

Kathryn a. Hazeem, Minority Counsel



SUBdOMMITTEE ON CRIME AND CRIMINAL JUSTICE '

CHARLES E. SCHUMER, New York, Chairman \

DON EDWARDS, CaUforma F. JAMES SENSENBRENNER, Jr.,

JOHN CONYERS, Jr., Michigan Wisconsin

ROMANO L. MAZZOLI, Kentucky LAMAR S. SMITH, Texas I

DAN GLICKMAN, Kansas STEVEN SCHIFF, New Mexico ■

GEORGE E. SANGMEISTER, IlUnois JIM RAMSTAD, Minnesota

CRAIG A. WASHINGTON, Texas GEORGE W. GEKAS, Pennsylvania

DAVID MANN, Ohio

Andrew Fois, Counsel

David Yassky, Assistant Counsel

Paul Beaulieu, Assistant Counsel

Gabrielle Gallegos, Assistant Counsel

Lyle Nirenberg, Minority Counsel

(II)



CONTENTS



HEARING DATE



Page

September 29, 1993 1

OPENING STATEMENTS

Edwards, Hon. Don, a Representative in Congress from the State of

California, and chairman. Subcommittee on Civil and Constitutional Rights 1

Schumer, Hon. Charles E., a Representative in Congress from the State

of New York, and Chairman, Subcommittee on Crime and Criminal Justice 3

WITNESSES

Bensinger, Peter, president and CEO, Bensinger, DuPont & Associates,

Chicago, IL, and former Administrator, Drug Enforcement Administration .. 120

Boyum, David A., adjunct lecturer in public policy. Harvard University, John
F. Kennedy School of Government, and senior research analyst, BOTEC
Analysis Corp., Cambridge, MA 124

Heymann, Philip B., Deputy Attorney General, U.S. Department of Justice .... 21

Hughes, Hon. William J., a Representative in Congress from the State of
New Jersey 8

Lee, Rennsselaer W., Ill, president, Global Advisory Services, Alexandria,
VA 115

Malman, Myles H., former U.S. attorney. Southern District of Florida 91

Oboyski, Victor G., national president. Federal Law Enforcement Officers
Association 74

Rangel, Hon. Charles B., a Representative in Congress from the State of
New York 13

Scully, Robert, executive director. National Association of Police Organiza-
tions 83

Silbering, Robert H., special narcotics prosecutor. New York City 105

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Bensinger, Peter, president and CEO, Bensinger, DuPont & Associates,
Chicago, IL, and former Administrator, Drug Enforcement Administration:
Prepared statement 122

Boyum, David A., adjunct lecturer in public policy. Harvard University, John
r . Kennedy School of Government, and senior research analyst, BOTEC
Analysis Corp., Cambridge, MA: Prepared statement 126

Heymann, Philip B., Deputy Attorney General, U.S. Department of Justice:

Prepared statement 29

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois:

Prepared statement 140

Kleiman, Mark A.R., associate professor, Kennedy School, a research fellow,
criminal justice policy and management, and president of BOTEC Analysis:
Prepared statement 126

Lee, Rennsselaer W., Ill, president, Global Advisory Services, Alexandria,

VA: Prepared statement 117

Malman, Myles H., former U.S. attorney. Southern District of Florida: Pre-
pared statement 94

Oboyski, Victor G., national president, Federal Law Enforcement Officers

Association: Prepared statement 77

Ramstad, Hon. Jim, a Representative in Congress from the State of
Minnesota: Prepared statement 136

(III)



IV

Page

Rangel, Hon. Charles B., a Representative in Congress from the State of
New York: Prepared statement 17

Scully, Robert, executive director, National Association of Police Organiza-
tions: Prepared statement 85

Silbering, Robert H., special narcotics prosecutor, New York City: Prepared

statement 107

APPENDIX
Material submitted for the hearing 143



FBI AND DEA: MERGER OR ENHANCED
COOPERATION?



WEDNESDAY, SEPTEMBER 29, 1993

House of Representatives, Subcommittee on Civil
AND Constitutional Rights, and Subcommittee on
Crime and Criminal Justice, Committee on the Ju-
diciary,

Washington, DC.

The subcommittees met, pursuant to notice, at 10 a.m., in room
2141, Raybum House Office Building, Hon. Don Edwards (chair-
man of the Subcommittee on Civil and Constitutional Rights) pre-
siding.

Members present from the Subcommittee on Civil and Constitu-
tional Rights: Representatives Don Edwards, Patricia Schroeder,
Barney Frank, Craig A. Washington, Howard Coble, and Charles
T. Canady.

Members present from the Subcommittee on Crime and Criminal
Justice: Representatives Charles E. Schumer (chairman of the sub-
committee), Don Edwards, Craig A. Washington, John Conyers, Jr.,
David Mann, F. James Sensenbrenner, Jr., Steven Schiff, and
George W. Gekas.

Staff present from the Subcommittee on Civil and Constitutional
Rights: Catherine LeRoy, counsel; James Dempsey, assistant coun-
sel; and Kathryn Hazeem, minority counsel.

Staff present from the Subcommittee on Crime and Criminal
Justice: Andrew Fois, counsel; Daniel Cunningham, assistant coun-
sel; Rachel Jacobson, secretary; and Lyle Nirenberg, minority coun-
sel.

OPENING STATEMENT OF CHAmMAN EDWARDS

Mr. Edwards. The hearing to be held by two subcommittees of
the House Judiciary Committee, the Subommittee on Crime and
Criminal Justice, and the Subcommittee on Civil and Constitu-
tional Rights, will come to order.

We are going to look at the subject of the suggested merger of
the FBI and the Drug Enforcement Administration today. It is a
subject that is going to need considerable study.

I personally have some problems with it and I hope that they
will be aired by our expert witnesses. It just seems to me person-
ally, at a time when we have a new administration, with a new Di-
rector of the FBI, a new Attorney General, that it would be asking
quite a lot to undertake such a massive step as this kind of a merg-
er.

(1)



However, we want to hear all the evidence and talk to our
friends in the administration about it. We have an excellent wit-
ness today from the administration, the Deputy Attorney General.

Mr. Sensenbrenner.

Mr. Sensenbrenner. Thank you very much, Mr. Chairmgin.

First, let me ask unanimous consent, pursuant to committee rule
5, that this hearing be broadcast, televised or available for still
photography.

Mr. Edwards. Without objection, so ordered.

Mr. Sensenbrenner. Mr. Chairman, on September 7, the Vice
President of the United States, Al Gore, released his outline of how
to make our Government work more efficiently and to give the tax-
payers more for their money, in a report entitled: "Creating a Gov-
ernment That Works Better and Costs Less."

This is the first major hearing on a proposal within the Gore
Commission's recommendations. And that is whether the FBI and
the Drug Enforcement Administration should be merged.

I support that, just as I did 11 years ago when the Subcommittee
on Civil and Constitutional Rights held a hearing on the same sub-
ject, when the proposal was made by the Reagan administration.
I believe that this merger makes sense for a number of reasons.

First, through merging these agencies, we will be reducing the
amount of money that is spent on the triplicate administration,
thus freeing up our scarce tax dollars for more actual law enforce-
ment. I think one of the reasons why the American people are so
ticked off at the unresponsiveness of their Government is the fact
that there always seems to be an excuse why not to do something.
And we seem to be spending more and more of our tax dollars hir-
ing bureaucrats to push pencils, rather than to actually get the job
done for the American taxpayer.

This merger, in my opinion, will reduce the percentage of our law
enforcement dollars used for administration, and allow more Fed-
eral agents to be out on the street investigating organized crime,
drug abuse, and all of the other violations of Federal law which
have made our society so violent as of late.

Second, through the merger, there will be the administrative
flexibility in the hands of our new Director of the FBI to shift
agents from one area to the other or back, depending upon what
the needs are. We can have a much less compartmentailized law en-
forcement function, so that if there is more of a need to investigate
and go after drug pushers, the FBI Director will be able to do that
by reducing the number of agents in some other function.

Similarly, if organized crime is the problem, we can put more
agents in that. That can't be done under the current fragmented
law enforcement function.

Finsdly, I think that this merger makes sense because it answers
the questions the American public has on why the FBI doesn't im-
mediately get involved. I remember earlier this year when a hear-
ing was held on the World Trade Center bombing. People were
wondering why the Bureau of Alcohol, Tobacco and Firearms was
the lead law enforcement agency.

A couple years ago when I served as the ranking member on Mr.
Edwards' subcommittee, when we investigated arsons and bomb-
ings at abortion clinics, similar questions were raised on why the



BATF were the folks that showed their face first, rather than the
FBI, which everybody recognizes is our Nation's premier law en-
forcement agency. That is — the reason for both of these appear-
ances of the BATF, was incendiary and bombing devices are the
primary investigative jurisdiction of the Bureau of Alcohol, Tobacco
and Firearms.

These kinds of problems would be eliminated under the merger
that has been proposed by the Vice President and which I hope the
Congress will endorse.

Now it disappoints me greatly that the witness list of this initial
hearing, and to my knowledge it is the first on the Vice President's
recommendation, seems to be stacked in favor of the opponents of
these mergers. Now, while I recognize that there is turf to be pro-
tected and people have developed friendly relations with those who
are in administrative functions in all of these various agencies, the
American public is asking for more bang for the buck.

I would hope that my Democratic fi*iends, who I would have
hoped would have been a little bit more supportive of the Vice
President of their own party, would be a little bit more sympathetic
to what is being proposed in Vice President Gore's report. Because
I hope that this report will not meet the same outcome as the Com-
mission report that was headed by Peter Grace, who was appointed
by President Reagan to look into ways to save money, met.

So thank you very much. And I hope that my fi*iends on the
other side of the aisle will not be apostles of gridlock and opponents
of change, because I know that our Vice President would be dis-
appointed in that.

Mr. Edwards. Thank you, Mr. Sensenbrenner.

The hearing will be chaired jointly by me, as the chairman of the
Subcommittee on Civil and Constitutional Rights, and by our dis-
tinguished friend from New York, Mr. Schumer, the chairman of
the Subcommittee on Crime and Criminal Justice.

Mr. Schumer.

OPENING STATEMENT OF CHAIRMAN SCHUMER

Mr. Schumer. Thank you. It is a pleasure to have a joint hearing
with you on this issue.

The topic of this hearing is to consider whether our two premier
drug fighting agencies, the DEA and FBI, should be merged.

I know of no more serious question in the war on drugs. Drugs
and drug trafficking inflict enormous suffering on millions of Amer-
icans and fuel violent crime that scars every town, city, and county
in America. If we are going to fight this plague, we better be sure
that we know what we are doing, and better be sure that we are
doing it right.

And in reference to my colleague, the new defender of the admin-
istration, Mr. Sensenbrenner, I hope that lasts for a while.

In any case, I have a great deal of respect for the Vice President
and the National Performance Review that recommended the
changes. The American people want a government that works bet-
ter and costs less and many of his recommendations will get a big-
ger bang for the taxpayers' buck.

However, not all of it is going to be right. And this is one of the
areas where I have grave doubts. Given the DEA's record of success



in fighting drug crime, it seems to me that the burden of proof is
on those who favor the merger.

Our present structure didn't happen by chance. It didn't happen
overnight. It was built over years of experience and thoughtful
change and cooperation between Congress and the executive
branch. Anyone who knows the history knows that it has been in
one agency, then put in a separate agency, then put back with var-
ious memos, the last one by William French Smith, late Attorney
General in 1982, that then divided the re^onsibilities once again.

I have searched around. I have talked on the record to people in
the DEA and the FBI, at all levels. And I must tell my colleagues,
and I have told this to the Vice President himself, that the over-
whelming weight of informed professional opinion is against the
merger.

Over the past weeks, the subcommittee staff went and talked to
more people, including, as I said, DEA and FBI people, neutral peo-
ple, prosecutors, diplomats, top-ranked scholars. The verdict among
them wasn't even close. They generally, with certain exceptions, ob-
viously thought the merger was a bad idea.

Let me go over the reasons why. We will hear some of this from
our witnesses today.

First and foremost, the merger would wipe out the only Federal
law enforcement agency focused exclusively on fighting drugs. The
issue is one of focus. It would reduce that specialized agency to 1
of 10 or so divisions within the FBI. As a division within the FBI,
it would have to compete for funds, personnel, and resources with
other FBI programs.

Fighting drugs must be a national priority for the foreseeable fu-
ture. The FBI justifiably has many priorities, and we have seen
those priorities shift over the years. Agents, hundreds of agents,
are lifted from one area to the other, depending on the needs of
the moment, whether it be white-collar crime, gangs, or
counterterrorism.

My concern is that in the next year or the year beyond, those pri-
orities will change again and overwhelm the drug program. To me
at least, fighting drugs is so crucial that whether the merger goes
forward or not, we have to find a way to insulate the people who
spend the long hours and the painstaking time fighting drugs from
the shifts in those vicissitudes.

Second, the merger would erase the DEA's distinct drug inves-
tigation techniques and operating culture, which has been built
over years of experience. DEA personnel and operations are dif-
ferent from those of the FBI, and they would be forced to conform
in a merger. This is not simply a matter of style. I know the talk
about "cowboys" against "blue suits."

The DEA's distinctive expertise and way of doing things have de-
veloped precisely because they got results in the drug environment.
I question the wisdom of eliminating that resource.

Third, the merger could cripple drug fighting efforts overseas.
The DEA has earned the trust of foreign governments. At the
height of the cold war, DEA agents worked inside the former Soviet
Union and the People's Republic of China.

Today, although the United States has no diplomatic relations
with Burma, the DEA has an office there. And that is because for-



eign governments know the DEA has no counterintelligence agenda
and the FBI does.

If the DEA is merged into the FBI, governments may be reluc-
tant to cooperate with our drug-fighting operations overseas. They
will fear that those operations mask FBI counterintelligence oper-
ations.

Fourth, DEA has an important regulatory responsibility. It de-
fines and regulates the flow of legal drugs in America. Where does
this program go in a merger? Common sense says it is not some-
thing the FBI would want to do for long. So then we must get into
the wicket of splicing that program perhaps to another agency a
few years down the road.

And fifth, however much we might deny it, merger sends a silent
but powerful message. Many will hear us say that we don't care as
much about fighting drugs.

Those, to me, are the five main questions that the administration
must answer before they can convince me that this is a good thing.

Other serious questions must be answered, too. What will hap-
pen to DEA's unique intelligence data base? What are the policy
implications of moving toward a single national police agency?

The arguments made by those who seek the change, do not, in
my opinion, outweigh the problems. The basic argument for the
merger is that it will promote efficiency by increasing productivity
and cutting costs, especially administrative support areas. I am not
sure these hypothetical savings will ever be realized.

It is also hard to see how the merge would increase productivity
in drug enforcement. According to the DEA, their agents out-
perform FBI agents 4 to 1 in drug arrests, 6 to 1 in convictions,
3 to 1 in assets seized. That is probably because there are different
types of cases, although they say they refine for those. Nonetheless,
we have to look at productivity and see if that is really going to
make a difference.

I met with Director Freeh last week. He argued in favor of the
merger. I regret that he was probably the lead witness to favor the
merger, but he bowed out at the last minute, as did Judge Bonner
on the other side, and I understand why. If I were the administra-
tion, I probably would have done the same thing. Although as Con-
gressmen, we regret that they did it.

In any case, he argued in favor of the merger based on the FBI's
wide jurisdiction over Federal crimes. The argument is that drug
trafficking organizations are criminal enterprises that can be at-
tacked effectively by an agency with broad jurisdiction, and they
can move from drugs to organized crime, from drugs to
counterterrorism, better in one agency.

I think that argument makes some sense. But it doesn't seem to
me to outweigh all the other arguments.

Regarding rivalry, the Attorney General herself has been very
concerned about this problem among law enforcement agencies.
Some rivalry is healthy, as well as inevitable. It is healthy within
the proper bounds because it inspires competition. As long as it is
properly managed, competition between these two agencies may get
better results — more cases, more investigations, and more convic-
tions.



In sum, I fear that this well-intentioned effort to cut costs and
duplication would cost more than we would save. It would mean
less efficiency on the street, where it counts, and fewer traffickers
behind bars.

Finally, I would say it doesn't have to be an either/or question.
There are ways to improve the performance of both agencies. With
the new Attorney General, I am convinced cooperation will in-
crease, whether or not we merge the agencies. She cares about that
issue and can separate the wheat from the chaff. Data base sharing
and intelligence gathering are perfect examples of effective coopera-
tion.

Well, that is basically my view. I appreciate my colleagues indul-
gence, both on the committee and otherwise. I want to thank Don
Edwards for holding this joint hearing with us.

Let me just say that we ought to dedicate ourselves, in my opin-
ion, to doing what is best in terms of fighting the war on drugs.
That will at least be my guide as we follow these proceedings
through.

Mr. Edwards. Thank you, Chairman Schumer. That is a very
helpful statement.

Mrs. Schroeder.

Mrs. Schroeder. Mr. Chairman, I will be very brief.

I want to thank you both for having these hearings. I want to
say in the beginning, I honestly think some consolidations can save
money. Maybe that comes from my long experience on the Armed
Services Committee, where I listened to the different uniformed
services tell us how they absolutely must be separate, that there
was no way to eliminate duplication. You know, the Navy needed
an air force, £m.d the Air Force needed an army, and the Army
needed both.

As one who has worked, and worked, and worked to streamline
that, I was very pleased this week when we received a bunch of
reprogrammings; and guess where it came out of? It came out of
personnel, because we had crunched them down a bit, and so they
had money then to go into services and things that people needed.

I don't want to do anything to impair our law enforcement capa-
bility anywhere. But we all do work for the same flag. And I do
think some of the competition between different agencies can be
counterproductive. It certainly can be in the military.

There are days when I think the Army hates the Navy more than
the enemy, or vice versa. And that can be very, very dangerous.

I also think that when resources are so tight and we are des-
perately needing more money for more people on the street, the
most expensive thing we have in the military, in law enforcement,
in anj^hing, are personnel costs. So having come from a long his-
tory with the NLRB and personnel law, I think there is a way to
do this and retain the uniqueness of each agency's work and still
save a lot of money.

I salute the Vice President for his vigorous attempt to do it and
I will try to do whatever I can to help.

Mr. Edwards. Thank you, Mrs. Schroeder.

Mr. Coble.

Mr. Coble. Thank you, Mr. Chairman.



I have no prepared statement. I want to think aloud just a mo-
ment or two, Mr. Chairman, if I may.

I, too, commend the Vice President in his effort to reinvent gov-
ernment and if the purpose of this proposed merger, and I beheve
that is the purpose, is to be more cost-effective, I heartily endorse
it.

The problem I can see that we may confront in so doing, Mr.
Chairman, is in the area of specialization. You know, Mr. Chair-


1 3 4 5 6 7 8 9 10 11 12 13 14

Online LibraryUnited States. Congress. House. Committee on the JFBI and DEA : merger or enhanced cooperation? : joint hearing before the Subcommittee on Civil and Constitutional Rights and the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, September 29, 1993 → online text (page 1 of 14)